Public Funding in Criminal Cases

Reasons for public funding

Public funding is available for the majority of criminal cases; in order to protect the liberty, livelihood and reputation of citizens. Access to justice is extremely important. European laws also protect free legal advice in criminal cases. The European Convention on Human Rights states that anyone charged with a criminal offence is entitled to defend themselves in person or with free legal assistant if they cannot pay for it themselves. Previously, the Legal Aid Scheme was in place to assist funding for criminal cases. This scheme is no longer in use and has been replaced by the laws discussed below. Public law centres and Citizens Advice Bureaus also offer free legal advice but these bodies may not be available for representation.

The law surrounding public funding

The law in England and Wales is currently governed by the Access to Justice Act (AJA) 1999 and the Criminal Defence Service Act 2006. The Legal Services Commission was set up. The Commission then set up the Criminal Defence Service (CDS), to give people charged with criminal offences (defendants) access to free legal advice and representation if needed. The CDS maintain contracts with private law firms and also defence lawyers employed by the government’s Public Defender Service.

Representation available at police station

There are a number of services available to the public, depending on their circumstances and the stage they are at in criminal proceedings.  Firstly, a duty solicitor is often needed when someone is arrested and detained at a police station.  As part of European and current Police laws, everyone has the right to a solicitor at this stage. If they cannot afford their own solicitor, a duty solicitor may be called to provide them with legal advice and assist them in an interview. Free legal advice should be offered and it is not advisable to be interviewed without it. A duty solicitor may also be called upon to represent someone in court if the court needs to decide on further eligibility for funding or if the defendant pleads guilty at the magistrates court and a sentence is given there and then.

Applying for representation

A defendant may apply for public funding for a lawyer for their first hearing, who well then provide representation throughout the course of the trial. The Court will make a decision on whether they are entitled to funding, this will be considered after their not guilty at the first hearing. An application for a Criminal Representation Order is made orally to the Court. Form CDS14, available from the Court, will also need to be completed and handed into that same court. Obviously not everyone is entitled to legal advice free and two “tests” must be met. The first is the interests of justice test, to make sure legal assistance is provided to those needing it. The second is a means test, which is for cases heard in the magistrates court only.

Interests of Justice Test

Firstly, the interests of justice test means that a Criminal Representation Order will be granted if there is a serious possibility that the person accused will lose their liberty or livelihood, if there is a serious risk of a damaged reputation, if the charge involves a particularly complex area of law, if they will have trouble following the case, if a lawyer is needed to question a witness, if it is needed to protect someone else’s interests (other than the person accused) or if the Court have any other reasons for allowing the funding.  This test applies to hearings in the Magistrates and Crown Courts. Most people facing a trial will fit into at least one of these categories, securing access to justice for the public. 

Means Test

Secondly, the means test will be used for trials in the magistrates court only. Some people will automatically be granted funding, this is known as a passported application. People who are considered to be passported  applicants are under the age of sixteen, under the age of eighteen and in full time education, or receiving income support, income based jobseeker’s allowance or a state pension. If the person is not a passported applicant then a form CDS15 needs to be obtained from the court and completed. Their gross income will be considered; if it’s below £21,487, they will be eligible. If it is above this amount , they may apply to the court by completing a form CDS16 showing evidence of any high or unusual outgoings.

Representation for the duration of the trial

A Criminal Representation Order enables a defendant to have legal representation throughout the whole trial, including advice on appeals if a defendant is convicted and sentenced.  If the Order is rejected by the Court it is likely that legal advice will need to be paid for privately, by seeking legal advice from a private solicitor and paying for it themselves. Appeal options are quite limited, as a defendant can only apply to the same court as before.  If a defendant is found guilty at the trial, they might be required to pay some of the costs back.